BUOYANT ENTERPRISE SUBSCRIPTION SERVICE ORDER
TERMS & CONDITIONS
These Terms & Conditions, including any exhibits and/or schedules attached hereto (the “Terms & Conditions”) govern the Buoyant Service Order that incorporates these Terms & Conditions by reference (the “Service Order”) entered into between Buoyant, Inc. (“Buoyant”) and the client named in the Service Order (“Client”). Together, the Service Order and these Terms & Conditions constitute the “Agreement,” which is effective as of the effective date set forth in the Service Order (the “Effective Date”).
In consideration of the mutual promises below and other good and valuable consideration the sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1. Upon execution of the Service Order, Buoyant will provide and/or make available the services selected by Client in the Service Order. In addition, during the Term (defined below), Client may request supplemental services, such as additional advisory services or technical assistance hours. Client acknowledges that (i) advisory services will be provided remotely via video conference at mutually convenient times, and may be used for purposes such as configuration review, architectural review and similar topics, (ii) technical assistance services will be provided remotely to Client’s authorized personnel members via the support.buoyant.io website, and may be used for purposes such as general best practice questions, performance tuning and similar topics, (iii) advisory service and technical assistance hours will be tracked by Buoyant and measured in 15-minute increments, and (iv) unused hours will expire upon the expiration or termination of this Agreement. Client further acknowledges that (i) on-call support and incident/support request tracking is available via the support.buoyant.io website only, and only for supported releases of the product identified in the Service Order, (ii) response times are subject to the severity level of the incident reported, as determined by Buoyant (noting that the severity level of an incident may change over the course of time), (iii) once notified of an incident, Buoyant will use commercially reasonable efforts to resolve the request in a timely manner and to provide workarounds to re-enable functionality. Buoyant will provide all services selected in an executed Service Order or later requested by Client and accepted by Buoyant (collectively, the “Services”), subject to any and all limitations set forth in the Service Order, and otherwise in accordance with the terms of this Agreement.
1.2. Client acknowledges that (i) Buoyant’s performance of the Services is dependent on timely cooperation by Client, its employees, officers and agents, including access to skilled personnel, complete and accurate information, and suitably configured equipment and systems, and (ii) Buoyant will not be liable for any deficiency in its performance of the Services if such deficiency results from Client’s failure to provide full cooperation.
2. Fees & Payment Terms
2.1. Fees. Client will pay Buoyant the fees set forth in the Service Order, invoiced annually in advance unless otherwise indicated in the Service Order. In the event that Client requests supplemental Services during the Term, Client will pay Buoyant’s standard rates in effect at the time of the request, which fees will be invoiced in advance.
2.2. Expenses. Client will reimburse Buoyant for any and all reasonable, out-of-pocket, travel, administrative, equipment, and other expenses approved by Client in writing and incurred in conjunction with the Services, which will be invoiced as incurred.
2.3. Payment. Unless otherwise expressly specified in the Service Order, payment of all invoices is due within thirty (30) days of the invoice date.
2.4. Taxes. The fees set forth in the Service Order do not include taxes or duties of any kind. If Buoyant is required to pay or collect any local, value added, goods and services taxes or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Buoyant’s income), then such taxes and/or duties shall be billed to and paid by Client.
2.5. Late Payments. Past due invoices will be subject to interest at the rate of one and one-half percent (1.5%) per month (or, if less, the maximum allowed by applicable law). Client will be responsible for any costs of collection efforts, including reasonable attorneys’ fees and court costs, and Buoyant reserves the right to suspend performance of the Services pending payment.
3. Term and Termination
3.1. Term. The Agreement will be effective from the Effective Date and continue for the period identified on the Service Order (the “Initial Term”), and will thereafter automatically renew in accordance with the renewal term set forth in the Service Order (each, a “Renewal Period” and together with the Initial Term, collectively, the “Term”), unless either party provides the other party with written notice of non-renewal prior to the expiration of the then-current Term (in accordance with the Service Order) or the Agreement is terminated in accordance with Section 3.3.
3.2. Termination for Breach. A party may terminate this Agreement immediately upon written notice if the other party is in material breach of the Agreement and has not cured the breach within thirty (30) days of its receipt of written notice setting forth in reasonable detail the nature of the breach. Consent to extend the cure period for breaches will not be unreasonably withheld, so long as the breaching party has commenced cure during the thirty (30) day notice period and continues to work diligently and in good faith to cure the breach.
3.3. Effect of Termination. Termination of this Agreement will not limit either party from pursuing any other remedies available to it, including injunctive relief, nor will termination relieve Client of its obligation to pay all charges that accrued prior to such termination. Buoyant will not refund to Client any amount paid to Buoyant prior to termination. The parties’ rights and obligations under Sections 2, 3.4, 4 through 7 will survive termination of this Agreement.
4. Indemnification, Warranty, Disclaimers, and Limitation of Liability
A. Each party (“Provider”) will defend the other party (“Recipient”) against any damages awarded to a third party pursuant to a claim that any information, design, Deliverable, specification, instruction, software, data, or material furnished by the Provider (“Material”) and used by the Recipient in accordance with this Agreement infringes a U.S. patent or copyright or misappropriates any trade secret and pay all costs, damages and expenses finally awarded against the Recipient by a court of competent jurisdiction or agreed to in a written settlement signed by the Provider, provided that (i) the Recipient notifies the Provider in writing within fifteen (15) days of becoming aware of the claim; (ii) the Provider has sole control of the defense and all related settlement negotiations; and (iii) the Recipient provides the Provider with the assistance, information, and authority reasonably necessary to perform the above.
B. Notwithstanding the foregoing, Buoyant will have no liability for any claim of infringement resulting from (i) Client’s use of a superseded release of some or all of the Material, if infringement would have been avoided by the use of a subsequent release of the Material which the Buoyant provides to Client; (ii) any information, design, specification, instruction, software (including, any Linkerd code), data, or material not furnished by Buoyant; (iii) modifications to the Material not made by Buoyant; (iv) any combination of the Material with material not provided by Buoyant, which combination is the basis for such claim; or (v) any Material which is infringing as a result of being based on designs, specifications, or instructions provided by Buoyant.
C. In the event that some or all of the Material is held or is believed by Buoyant to infringe, Buoyant will have the option, at its expense (i) to modify the Material to be non-infringing or replace it with non-infringing material; or (iii) to obtain for Client a license to continue using the Material. If it is not commercially feasible to perform either of the above options, then Buoyant may require from Client return of the infringing Material and all rights thereto. THIS SECTION 4.1 STATES THE PARTIES’ ENTIRE LIABILITY AND EXCLUSIVE REMEDY FOR INFRINGEMENT.
4.2. Warranties and Disclaimers. Buoyant warrants that the Services will be performed in a professional and workmanlike manner, and consistent with generally accepted industry practices. In the event that Buoyant fails to perform the Services in accordance with the foregoing warranties, Client may report such deficiency to Buoyant within thirty (30) days after Buoyant’s performance of the affected Services, and Buoyant will re-perform the affected Services at no additional charge to Client. Such re-performance shall be Client’s exclusive remedy, and Buoyant’s entire liability, for such failure, and if Buoyant fails to re-perform the Services as warranted, Client’s sole and exclusive remedy shall be to recover the fees paid to Buoyant for the deficient Services. THE FOREGOING WARRANTIES ARE EXCLUSIVE, AND IN LIEU OF, AND BUOYANT EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE.
4.3. Limitation of Liability. IN NO EVENT WILL (I) EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD OTHERWISE HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) BUOYANT’S AGGREGATE CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CLIENT HEREUNDER. The provisions of this Agreement allocate the risks under this Agreement between Buoyant and Client. Buoyant’s pricing reflects this allocation of risk and the limitation of liability specified herein.
5. Intellectual Property
5.1. Grant of Copyright in the Deliverables. Subject to Client’s payment of the amounts due under the Service Order and to Client’s compliance with the requirements herein, Client will own all copyrights to the portion of the Deliverables consisting solely of written reports, analyses, and other working papers (other than Buoyant Retained Materials), prepared and delivered by Buoyant to Client under the SOW, provided that Client will exercise its rights for Client’s internal business operations only and will not resell or distribute the Deliverables to any third party. 5.2. Grant of License Rights in the Deliverables. For Buoyant Retained Materials and the portion of the Deliverables that consists of scripts, code, templates, and all other materials developed or otherwise provided by Buoyant in connection with the Services, Buoyant grants Client a non-exclusive, non-transferable, irrevocable (except in case of breach of this Agreement), perpetual license, without the right to sublicense, to use and copy (without the right to sublicense), for Client’s internal business operations only (the “Deliverables License”). The Deliverables License does not apply to (i) Client Materials, and (ii) any other products or items licensed, or otherwise provided, under a separate agreement.
5.3. Open Source Software License. Support Services enable Client’s deployment of the Linkerd code, open source software. To the extent the Deliverables result from access, modification, enhancement, preparation of Derivative Works, contribution, integration, combination, distribution, or otherwise use of free and open source software, such rights and responsibilities with respect to such free and open source software will be governed solely by the terms and conditions set forth in the applicable open source software license agreement, or license agreements, pursuant to which such free and open source software are licensed to the general community of developers and users. The term “open source software” means any software source code that is licensed to the general community of developers and users on a free or open-source basis by the owners, contributors, or other holders of copyrights in such code. The parties to this Agreement will retain ownership of and/or rights to elements of open source software in accordance with the terms and conditions underlying the use and licensing thereof, as set forth in the applicable license agreement, or license agreements, pursuant to which the applicable open source software is licensed.
5.4. Client Materials. Any Client Materials used by Buoyant in connection with the SOW remain Client property. Pursuant to Client’s Intellectual Property Rights in Client Materials, Client grants Buoyant a non-exclusive and non-transferable right to use Client Materials solely for the benefit of Client in fulfillment of Buoyant’s obligations under the SOW. Client warrants that it has the necessary rights to provide Client Materials to Buoyant, so that Buoyant can access, use, and modify Client Materials as necessary for Buoyant’s performance of the Services.
5.5 Reservation of other Intellectual Property Rights. Each party reserves for itself all other Intellectual Property Rights that it has not expressly granted to the other. All rights in Buoyant Retained Materials remain Buoyant’s sole property. Buoyant will not be limited in developing, using or marketing services, materials or products that are similar to or related to the Deliverables (other than those portions of the Deliverables where ownership of the copyright has been granted to Client) or the Services, or, subject to Buoyant’s confidentiality obligations to Client, in using the Deliverables in or performing similar Services for any other projects or parties.
6. Confidentiality, Nondisclosure, Client Support Content
6.1. Nondisclosure. The parties may provide to one another information that is confidential (“Confidential Information”). Confidential Information will be limited to information clearly identified as confidential. Confidential Information will not include information which (i) is or becomes a part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (v) is disclosed by operation of law, provided that the disclosing party receive notice of such disclosure, to the extent permissible under applicable law, and opportunity to oppose or limit it. The parties agree to hold each other’s Confidential Information in confidence during the Term and for three (3) years after the termination of this Agreement.
6.2 Submission of Content. In connection with a Technical Support request, Client may upload Content to Buoyant’s systems. That Content will vary depending on the product and the context of the Technical Support issue. Content may consist of: (a) detailed system information about the failure such as the name and state of the affected operating system, logs, system descriptions (not including the contents of virtual disks or snapshot files), system identifiers, IP addresses, and user identifiers; and (b) core dumps, which may contain a full record of the memory image at the time of the crash including CPU and memory information related to the failure, passwords, cryptographic keys, and/or application data, depending upon the technical state at the time of the failure. Client is solely responsible for taking steps necessary to protect any sensitive or confidential information, including personal data, included in Content. Those steps may include Client obfuscating or removing such information or, depending on the product, otherwise working with Buoyant at the time of submission to limit the disclosure of such information.
6.3 Restricted Content. Client must not submit any Content to Buoyant that: (i) Client does not have the right to provide to Buoyant; (ii) constitutes information that is regulated by the Health Insurance Portability and Accountability Act, as amended and supplemented, and the regulations thereunder (collectively, “HIPAA”), or any similar federal, state, or local laws, rules, or regulations, unless Client has signed a Business Associate Agreement (as defined by HIPAA) with Buoyant; (iii) contains financial information of any individual; or (iv) is regulated by law or regulation without complying with the applicable laws or regulations. If Client submits any Content in contravention of this Section 6.3, then Client is solely responsible for the consequences of that submission.
6.4 Personal Data. To the extent Client provides personal to Buoyant as part of the Content, Buoyant will treat such personal data as Client’s Confidential Information.
6.5 Use of Content. Buoyant may review and analyze Content to address a Technical Support request. Buoyant may use the results of that review and analysis, in combination with (i) data Buoyant collects from Client regarding Client’s use of the Linkerd software (such as configuration, performance, and usage data) and (ii) information Buoyant maintains about the Client’s account, to provide support to Buoyant customers, and to improve Buoyant products, services, and user experiences.
6.6 Disclosure of Content. If Buoyant is required by a subpoena, court order, agency action, or any other legal or regulatory requirement, to disclose any Content, Buoyant will provide Client with notice and a copy of the demand, as soon as practicable, unless Buoyant is prohibited from doing so pursuant to applicable law or regulation. If Client requests, Buoyant will, at Client’s expense, take reasonable steps to contest and to limit the scope of any required disclosure.
7.1. Relationship of the Parties. Buoyant is an independent contractor; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each party will maintain appropriate worker’s compensation insurance for its employees as well as general liability insurance.
7.2. Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, will be governed by the laws of the State of California, United States of America.
7.3. Jurisdiction. Any legal action or proceeding relating to this Agreement will be instituted in any state or federal court in San Francisco County, CA. Buoyant and Client agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding.
7.4. Notice. All notices, including notices of address change, required to be sent hereunder will be in writing and will be deemed to have been given when delivered by nationally recognized express courier to the address listed below for Client or to the following for Buoyant: 703 Market St, 12th Fl, San Francisco, CA 94103, Attn: Legal, and via email to [email protected]
7.5. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
7.6. Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
7.7. Force Majeure. Neither party shall be liable to the other under this Agreement for any delay or failure to perform resulting from any act of God, war, fire, typhoon, flood, earthquake, natural disasters, governmental action, labor disruptions, materials shortages, or any other event beyond the reasonable control of the prevented party.
7.8. Assignment. Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, and any assignment or transfer in derogation of the foregoing shall be null and void, provided, however that either party shall have the right to assign this Agreement, without the prior written consent of the other party, to an affiliate or the successor entity in the event of merger, corporate reorganization, change of control or similar such transaction, or a sale of all or substantially all of its assets. The terms of this Agreement shall be binding upon such assignees.
7.9. Entire Agreement. The Service Order, as governed by these Terms & Conditions, constitutes the complete agreement between the parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. It is expressly agreed that the terms and conditions of this Agreement supersede the terms of any Client-issued purchase order or similar document, notwithstanding any acknowledgement or acceptance thereof by Buoyant.
“Affiliate” means, with respect to a party, an entity that is directly or indirectly controlled by or is under common control with that party, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests of the entity (but only as long as that person or entity meets these requirements).
“Buoyant Retained Materials” means (i) materials (other than products) developed or obtained by or for Buoyant independently of the Services, and (ii) subsets or modules of the Deliverables that by themselves provide generic technical information not unique to Client’s business.
“Consulting Services” means the services provided by Buoyant to Client as described in the Statement of Work to which these Terms & Conditions are attached (“SOW”).
“Content” means data provided by Client to Buoyant to address a Technical Support issue. Content does not include client account or relationship data that Buoyant uses in connection with a Technical Support request, or data collected by Buoyant to verify the support entitlement or to facilitate any communications.
“Client Materials” means any materials or Technology provided to Buoyant by Client in connection with the Consulting Services.
“Deliverables” means any reports, analyses, scripts, templates, code or other work products, tangible or intangible, to be delivered by Buoyant to Client as set forth in the SOW.
“Derivative Work” means a derivative work as defined under United States intellectual property laws.
“Intellectual Property Rights” means all worldwide intellectual property rights including copyrights, trademarks, service marks, trade secrets, know-how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
“Taxes” means any sales, use and other taxes (other than taxes on Buoyant’s income), export and import fees, customs duties, and value added taxes, and similar charges applicable to the Services that are imposed by any government or other authority.
“Technical Support” means telephone or web-based technical assistance by Buoyant to Client’s technical contact(s) regarding installation of the Linkerd code, errors and technical product problems, at the corresponding Services package level purchased by Client.
“Technology” means algorithms, approaches, source and object codes, concepts, data, designs, developments, documentation, discoveries, expressions, inventions, know-how, methodologies, multimedia files, processes, programs, skills, software, techniques, technology, templates, text, tools, and web pages.
“Territory” means the country or countries in which Client has been invoiced, unless otherwise specified in the SOW.